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Firing for Smoking Pot At Work is Not Discriminatory

By June 11, 2018November 28th, 2019Employment Law

In a recent decision at the Ontario Human Rights Tribunal, an employer’s decision to terminate an employee (for smoking pot at work) was found not to be discriminatory.

We have talked about marijuana at work previously on our blog, but marijuana in the workplace is demanding a closer focus since the federal government is expected to legalize recreational marijuana before the end the summer.

How medicinal and recreational marijuana is to be treated and managed in the workplace setting is on the top of minds of many dentists.

Luckily, the Ontario Human Rights Tribunal is on our side!

The Case and Decision

In Aitchison v L&L Painting and Decorating Ltd., 2018 HRTO 238, the Tribunal found that an employer had not discriminated against an employee when it terminated his employment for smoking marijuana while at work.

In addition, the Tribunal clarified for employers that employees do not have an absolute right to smoke marijuana at work regardless of whether it is used for medicinal purposes.

The Facts

The employer in this case was a contractor who restored high-rise buildings.  The employee had worked for over 30 years as a painter, but only had worked for the employer as a painter (on a seasonal basis) from 2011 until about 2015 when his employment was terminated. To note, part of his duties as a seasonal painter required him to perform work on a swing stage (where the employee is suspended on the outside of a building) 37 floors above the ground.

The employee stated he suffered from degenerative disc disease as a result of an accident before working for the employer. To manage his chronic pain, the employee used marijuana while at work (remember, he works at high floors on the outside of the building).

Even when his job duties required him to perform work on the 37th floor, he continued to self-medicate on his breaks by smoking marijuana (and he did this while sitting alone on the swing stage, suspended on the outside of the building where he was working). The employee told the Tribunal that his supervisor “allowed” him to use marijuana on his break, so long as he was away from other crew members.

Nevertheless, in June 2015, after seeing the employee sitting alone on the swing stage (neither tethered to the stage nor wearing a hard hat) and smoking marijuana, a supervisor for the employer contacted  owner confirmed that the employee would be sent home in accordance with the employer’s “zero tolerance” policy on intoxication, which stated that an intoxicated worker must be removed from a jobsite.

After the employee came back to work, he never denied he smoked marijuana.  In fact, he claimed it was his right to do so while at work. For that reason, the employer terminated the employee’s job, for breaching the intoxication policy and for the numerous health and safety concerns associated with allowing someone to smoke marijuana on a job.

The employee sued his employer at the Human Rights Tribunal for discrimination since it did not permit him to use marijuana to treat his degenerative disc disease and chronic pain.

Going to the Human Rights Tribunal

The Tribunal easily threw out the employee’s claim of discrimination

The Tribunal found that the employer did have reasonable grounds to terminate his employment based on the employee’s actions. The Tribunal found that there was no evidence to support the claim for discrimination.

Here’s a summary of what the Tribunal said about the potential discrimination:

  • The employer did not discriminate against the employee when it fired him for smoking marijuana at work.
    • The Tribunal confirmed that the employee did not have an absolute right to smoke marijuana regardless of whether it had been used for medicinal purposes.
    • The employee unilaterally chose to smoke marijuana at work without authorization.
    • The employee was terminated not for the smoking of marijuana, but for a serious health and safety violation and there was no evidence to support the claim that the employee’s disability was a factor in the termination.
  • The employer did not fail to accommodate Mr. Aitchison.
    • There was no evidence that the employee requested an accommodation (as he is required to do) about his marijuana use at work.
    • The employer’s supervisor was not aware of the marijuana use, nor did it condone it.
    • The employee decided on his own to smoke pot at work without clearance from his employer or his doctor
    • Notably, the Tribunal specifically said that the employer was not required to investigate the possibility of accommodation after the employee gave the grounds for his own termination.
  • The zero tolerance policy on no intoxication at work was not discriminatory.
    • The policy was reasonably necessary to protect the health and safety of the workers and the public.
    • The policy did not impose automatic termination as a condition; it only imposed the removal of an intoxicated employee from the job site.
    • The employer took individual circumstances into consideration when applying the policy, and did not apply it in an unreasonable or mechanical way.
    • Similar policies are used throughout the construction industry given the inherent safety risks.
    • The policy was created with the honest and fair belief that allowing someone to work while intoxicated would pose a serious risk to health and safety.
    • The policy focused on the intoxicating effects of a drug, not whether it was legal. To that end, nothing in the policy stigmatized the use of marijuana  because of its (soon to be previous) history as an illegal substance.
    • The employee knew about the policy before he started smoking up at work.

For those reasons, the Tribunal threw out the employee’s claim for discrimination.  Even though there were no private lawyers involved in this particular case, there are no legal fees that the unsuccessful party has to pay the successful party because the Tribunal does not act that way.

Things to Keep in Mind

An important part of this decision was that the Tribunal found that the intoxication policy was a reasonable one, and it was not applied in a “mechanical” way.

Whenever human resources policies are created in a workplace, it is important to create them with an eye to having a judge or tribunal member critique them.  What we can take from this decision, when creating and enforcing policies in a dental office, is this:

  • A good (non-discriminatory) policy should be reasonably related to health and safety objectives (for example, prohibiting the use of impairing drugs in a health care or safety sensitive workplace);
  • Don’t target illegal drug use, but do make reference to the impairments of alcohol, marijuana, non-prescription drugs and prescription drugs that may affect reasonable objectives of the workplace.
  • Automatic termination shouldn’t be an outcome of a reasonable HR policy.
  • For managing marijuana in the workplace, keep in mind that an employee does not have an absolute automatic right to unilaterally smoke pot on their breaks without telling their employer (where there is a reasonable policy in place).
  • Take individual circumstances into consideration when applying the policy. Be reasonable. Be flexible.
The Content of this post is provided for informational purposes only. It is not intended to be legal, financial, tax, or other professional advice of any kind. You are advised to contact DMC (or other counsel) to seek specific legal advice concerning your individual situation.